Jharkhand High Court
Alamgir Ansari vs Union Of India Through National … on 28 August, 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 325 of 2024
Alamgir Ansari, aged about 28 years, son of Asghar Ansari @ Asgar
Sekh, resident of Gudri Tola Bandhdih, P.O.- Bandhdih, P.S.-
Ichagarh, District Seraikela Kharsawan (Jharkhand)
..... Appellant
Versus
Union of India through National Investigating Agency
..... Respondent
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CORAM: HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE ARUN KUMAR RAI
———
For the Appellant : Mr. Sahil, Advocate
Mr. Saurabh Narayan, Advocate
For the Resp.-NIA : Mr. Amit Kr. Das, Spl. P.P.-NIA
---------
th
09/ Dated: 28 August 2024
The instant appeal preferred under Section 21 (4) of the National
Investigation Agency Act, 2008, is directed against the order dated
01.03.2024 passed by the learned Special Judge, NIA, Ranchi in Misc.
Criminal Application No. 268 of 2024 whereby and whereunder the
prayer for regular bail of the appellant in connection with Special
N.I.A. Case No. 04 of 2020 arising out Tiruldih P.S. Case No. 16 of
2019, registered under Sections 147/ 148/ 149/ 379/ 302/ 353/ 323/ 324/
326/ 435 of the Indian Penal Code, Section 27 of Arms Act, Section 17
of CLA Act and Section 10 and 13 of the UA(P) Act, has been rejected.
Factual Matrix:
2. The brief facts of the case, as per the prosecution version, which
required to be enumerated reads hereunder as:
The prosecution story is based on the self-statement of the
informant S.I. Dayanand Ram of Tiruldih P.S. As per the informant on
14.06.2019, some police personnel were on patrolling duty and they
went to weekly market at Kukru. It is further stated by the informant
that at about 5.45 p.m. the driver of police vehicle, namely, Sukhlal
Kudada has informed by his mobile phone bearing No. 8292210986 to
Munshi Bobby Jha on his mobile no.7296045770 that one-hour earlier
Maoist terrorists had killed the police personnel by assaulting them
with Bhujali and looted their arms and ammunitions and other articles.
Accordingly, this fact has been entered into the station diary
numbered as 14/19 dated 14.06.2019 and the informant has informed the
said information to his senior officials. After sometimes, the police force
came from Headquarters as also from many other police stations and
thereafter the informant along with force went to the place of occurrence
and found that the dead body of police personnel’s lying at the place of
occurrence.
Further he came to know that about 15 to 17 Maoist terrorists came
on five to six Motorcycles and after killing the police personnel has left
the place after shouting “Zindabad” and looted all the arms and
ammunitions and other articles from the police personnel. The details of
the arms/ammunitions and looted articles have also been mentioned in
the FIR. The Maoists also charred sumo vehicle of police which was
parked beside the road.
3. On the basis of statement of informant, a case being Tiruldih P.S.
Case No. 16 of 2019 was registered against unknown miscreants under
Sections 147/ 148/ 149/ 379/ 302/ 353/ 323/ 324 and 435 of the Indian
Penal Code, Section 27 of Arms Act, Section 17 of C.L.A. Act and
Section 10/13 of Unlawful Activity Prevention Act.
4. The ministry of Home Affairs (MHA) Government of India in
view of the gravity of the offence and its cross border and international
ramification issued orders in exercise of the powers vested under Section
6(5) read with section 8 of the NIA Act 2008, directed the NIA to take up
the investigation of the aforesaid case.
5. On the direction of the Ministry of Home Affairs, NIA vide CTCR
Division Order No. 11011/69/2020/NIA dated 07.12.2020 re-registered
the case as Special (NIA) Case No. 04/2020 dated 09.12.2020 (NIA
Case RC 39/2020NIA/DLI) arises out of Tiruldih P.S. Case No. 16/2019
for the offence under Sections 147/ 148/ 149/ 302/ 353/ 379 and 435 of
IPC, Section 27 of Arms Act, 1959, Section 17 of the Criminal Law
Amendment (Prevention) Act, 1908 and Section 13 of Unlawful
Activities (Prevention) Act, 1967.
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6. From record it appears that the appellant has been taken into
custody, as such, prayer for bail was made before the Special Judge,
NIA, Ranchi but the same has been rejected vide order dated 01.03.2024
in Misc. Criminal Application No. 268 of 2024 (Special N.I.A. Case No.
04 of 2020) against which the present appeal has been filed.
7. It appears from the factual aspect that the case initially was
instituted as Teruldih P.S. Case no. 16 of 2019, in which, the chargesheet
was submitted but subsequent thereto the investigation of the case has
been handed over to the NIA in view of the power exercise under Section
6 (5) of NIA Act, 2008.
8. The appellant has been taken into custody for the purpose of further
investigation in the matter of the NIA and accordingly, investigation was
completed and chargesheet has also been submitted.
9. The appellant has made prayer for grant of bail which was rejected
by the learned Special Judge, NIA, Ranchi and thereafter, against the
said order the appellant had filed appeal being Cr. Appeal (DB) No. 1226
of 2022 before this Court but the Co-ordinate Bench of this Court has
rejected the prayer for bail of the appellant vide order dated 17.01.2023.
10. The appellant thereafter has again renewed the prayer for regular
bail before the learned Special Judge but the same has been rejected vide
order dated 01.03.2024.
Submission of learned counsel for the appellant
11. The learned counsel for the appellant has assailed the impugned
order, by which the prayer for bail of the appellant has been rejected, on
the following grounds:
(i) There is no specific attributability of the appellant in
commission of offence said to be committed under the
Schedule offence as per the allegation leveled in the FIR
and nothing has come in course of investigation against the
appellant in the charge-sheet also.
(ii) The appellant is in custody since 30th June 2022 and as yet
only 7 witnesses have been examined out of 138 witnesses,
as such there is slow progress of the investigation, therefore3
ground has been taken about the period of custody, as also
there is no likelihood of trial to be concluded at an early
date and hence by taking into consideration the said fact,
submission has been made that the impugned order may be
interfered with. To buttress this limb of argument the
learned counsel for the appellant put his reliance upon the
judgment as rendered by the Hon’ble Apex Court in the
case of Union of India Vs. K.A Nazeeb ((2021) 3 SCC
713).
12. Learned counsel for the appellant based upon the aforesaid
grounds has submitted that the learned court has not taken the note of
the aforesaid facts, therefore, it is a fit case where the impugned order
may be interfered with.
Submission of learned counsel for the respondent
13. Per contra, learned counsel for the NIA has submitted by
referring to the counter affidavit wherein it has been submitted by
showing the attributability of the appellant said to be the direct
involvement in the terror act.
14. It has been contended that the complicity of the appellant has been
taken into consideration by this Court while considering the prayer for
regular bail in Cr. Appeal (DB) No.1226 of 2022 but the same was
rejected by coming to the conclusion of not fulfilling the statutory
parameters as provided under Section 43-D (5) of the UAPA Act.
15. It has further been contended that prayer for regular bail of the
other accused person namely Avinash Kumar @ Chunnu Sharma (Cr.
Appeal (DB) No.1096/2023) has also been rejected.
16. Further submission has been made that so far as argument
advanced on behalf of the appellant that there is slow progress in the
trial and out of 138 witnesses only 7 witnesses have been examined, as
of now 10 witnesses have already been examined and trial to be
expedited for the purpose of concluding the trial as early as possible.
17. Learned counsel for the NIA has further submitted that since the
trial is at progress and so many protected witnesses are there, hence,
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there is likelihood of tampering with the evidence or even committing
in the way of the examination of the witnesses, since, not only the
appellant rather other accused persons are there who have been found
deeply involved in the terrorist activity.
18. Learned counsel on the basis of aforesaid ground has submitted
that if the learned Special Judge has rejected the prayer for regular bail
on consideration of the aforesaid fact hence the same may not be
interfered with.
Analysis
19. We have heard learned counsel for the parties, perused the
documents available on record and the finding recorded by learned trial
Court as recorded in the impugned order as also contents of counter
affidavit wherein copy of charge-sheet has also been appended.
20. Before entering into the propriety of the impugned order it
requires to refer herein the admitted fact that earlier to the present
appeal, an appeal had been preferred for consideration of prayer for
regular bail before this Hon’ble Court being Cr. Appeal (DB) No. 1226
of 2022, the appeal was rejected by coming to the conclusion that the
parameters of Section 43-D (5) of the UAPA Act have not been
fulfilled.
21. The appellant has renewed prayer for regular bail on the ground
of custody since he is in custody since 30th June 2022 and out of 138
witnesses, as per the appellant, 7 witnesses have been examined.
22. It is evident that the appellant is not questioning the propriety of
the order passed by learned Special Judge on his alleged complicity for
the criteria of Section 43-D (5) of the UAPA Act rather the emphasis of
argument is the period of custody and the issue of slow progress in the
trial.
23. This Court, before proceeding to consider the legality and
propriety of the impugned order, and rival submission of learned
counsel for the parties, deems it fit and proper to first refer the some
settled proposition of law and the relevant provisions of Unlawful
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Activities (Prevention) Act, 1967(herein referred as Act 1967) which is
required to be considered herein.
24. The main objective of the Act 1967 is to make powers available
for dealing with activities directed against the integrity and sovereignty
of India. As per Preamble, Act 1967 has been enacted to provide for the
more effective prevention of certain unlawful activities of individuals
and associations and dealing with terrorist activities and for matters
connected therewith. Therefore, the aim and object of enactment of
UAPA is also to provide for more effective prevention of certain
unlawful activities.
25. To achieve the said object and purpose of effective prevention of
certain unlawful activities, the Parliament in its wisdom has provided
that where an association is declared unlawful by a notification issued
under Section 3, a person, who is and continues to be a member of such
association shall be punishable with imprisonment for a term which
may extend to 2 years, and shall also be liable to fine.
26. Clause (m) of Section 2 of the Act, 1967 defines “terrorist
organization”. It is defined as an organization listed in the First
Schedule. CPI (Maoist) has been listed at Item no. 34 in the First
Schedule. Chapters III onwards of the 1967 Act incorporate various
offences. Chapter IV has the title “punishment for terrorist act”. Clause
(k) of Section 2 of the Act, 1967 provides that “terrorist act” has the
meaning assigned to it under Section 15 and the terrorist act includes an
act which constitutes an offence within the scope of, and as defined in
any of the treaties specified in the Second Schedule.
27. Further section 10(a)(i) of Act 1967 provides that where an
association is declared unlawful by a notification issued under Section
3 which has become effective under sub-section (3) of that Section, a
person, who is continues to be a member of such association shall be
punishable with imprisonment for a term which may extend to two
years, and shall also be liable to fine therefore, so long as Section
10(a)(i) of the Act, 1967 stands a person who is or continues to be a
member of such association shall be liable to be punished.
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28. As per mandate of section 13 of the Act 1967 who takes part in
or commits, or advocates, abets, advises or incites the commission of,
any unlawful activity, shall be punishable with imprisonment for a term
which may extend to seven years, and shall also be liable to fine.
29. At this juncture, it will be purposeful to discuss the core of
Section 43(d)(5) of the Act 1967 which mandates that the person shall
not be released on bail, if the court is of the opinion that there are
reasonable grounds for believing that the accusations made are prima
facie true .
30. The requirement as stipulated under Section 43D(5) of the UA(P)
Act, 1967 in the matter of grant of regular bail fell for consideration
before the Hon’ble Apex Court in the case of National Investigation
Agency v. Zahoor Ahmad Shah Watali [(2019) 5 SCC 1] wherein at
paragraph 23 it has been held by interpreting the expression “prima
facie true” as stipulated under Section 43D(5) of the Act, 1967 which
would mean that the materials/evidence collated by the investigation
agency in reference to the accusation against the accused concerned in
the First Information Report, must prevail until contradicted and
overcome or disproved by other evidence, and on the face of it, shows
the complicity of such accused in the commission of the stated offence.
31. It has further been observed that it must be good and sufficient on
its face to establish a given fact or the chain of facts constituting the
stated offence, unless rebutted or contradicted. The degree of
satisfaction is lighter when the Court has to opine that the accusation is
“prima facie true”, as compared to the opinion of the accused “not
guilty” of such offence as required under the other special enactments.
For ready reference, paragraph 23 of the aforesaid judgment is required
to be quoted herein which reads hereunder as:
“23. By virtue of the proviso to sub-section (5), it is the duty of the
Court to be satisfied that there are reasonable grounds for believing
that the accusation against the accused is prima facie true or otherwise.
Our attention was invited to the decisions of this Court, which has had
an occasion to deal with similar special provisions in TADA and
MCOCA. The principle underlying those decisions may have some
bearing while considering the prayer for bail in relation to the offences
under the 1967 Act as well. Notably, under the special enactments such
as TADA, MCOCA and the Narcotic Drugs and Psychotropic7
Substances Act, 1985, the Court is required to record its opinion that
there are reasonable grounds for believing that the accused is “not
guilty” of the alleged offence. There is a degree of difference between
the satisfaction to be recorded by the Court that there are reasonable
grounds for believing that the accused is “not guilty” of such offence
and the satisfaction to be recorded for the purposes of the 1967 Act that
there are reasonable 11 grounds for believing that the accusation
against such person is “prima facie” true. By its very nature, the
expression “prima facie true” would mean that the materials/evidence
collated by the investigating agency in reference to the accusation
against the accused concerned in the first information report, must
prevail until contradicted and overcome or disproved by other evidence,
and on the face of it, shows the complicity of such accused in the
commission of the stated offence. It must be good and sufficient on its
face to establish a given fact or the chain of facts constituting the stated
offence, unless rebutted or contradicted. In one sense, the degree of
satisfaction is lighter when the Court has to opine that the accusation is
“prima facie true”, as compared to the opinion of the accused “not
guilty” of such offence as required under the other special enactments.
In any case, the degree of satisfaction to be recorded by the Court for
opining that there are reasonable grounds for believing that the
accusation against the accused is prima facie true, is lighter than the
degree of satisfaction to be recorded for considering a discharge
application or framing of charges in relation to offences under the 1967
Act….”
32. It is, thus, evident from the proposition laid down by the Hon’ble
Apex Court in the case of National Investigation Agency v. Zahoor
Ahmad Shah Watali (Supra) that it is the bounden duty of the Court to
apply its mind to examine the entire materials on record for the purpose
of satisfying itself, whether a prima facie case is made out against the
accused or not.
33. Further, it is settled proposition of law that at the stage of
granting or non-granting of the bail, the Court is merely expected to
record a finding on the basis of broad probabilities regarding the
involvement of the accused in the commission of the stated offence or
otherwise and the elaborate examination or dissection of the evidence is
not required to be done at this stage.
34. Further, the Hon’ble Apex Court by setting out propounding the
law in the same case of National Investigation Agency v. Zahoor
Ahmad Shah Watali (supra), has observed that the elaborate
examination or dissection of the evidence is not required to be done at
this stage and the Court is merely expected to record a finding on the
basis of broad probabilities regarding the involvement of the accused in
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the commission of the stated offence or otherwise. For ready reference
paragraph 24 and 25 of the aforesaid judgment is being quoted herein
under:
“24. A priori, the exercise to be undertaken by the Court at this stage–
of giving reasons for grant or non-grant of bail–is markedly different
from discussing merits or demerits of the evidence. The elaborate
examination or dissection of the evidence is not required to be done at
this stage. The Court is merely expected to record a finding on the basis
of broad probabilities regarding the involvement of the accused in the
commission of the stated offence or otherwise.
25. From the analysis of the impugned judgment, it appears to us that
the High Court has ventured into an area of examining the merits and
demerits of the evidence. For, it noted that the evidence in the form of
statements of witnesses under Section 161 are not admissible. Further,
the documents pressed into service by the investigating agency were not
admissible in evidence. It also noted that it was unlikely that the
document had been recovered from the residence of Ghulam
Mohammad Bhatt till 16-8-2017 (para 61 of the impugned judgment).
Similarly, the approach of the High Court in completely discarding the
statements of the protected witnesses recorded under Section 164 CrPC,
on the specious ground that the same was kept in a sealed cover and
was not even perused by the Designated Court and also because
reference to such statements having been recorded was not found in the
charge-sheet already filed against the respondent is, in our opinion, in
complete disregard of the duty of the Court to record its opinion that the
accusation made against the accused concerned is prima facie true or
otherwise. That opinion must be reached by the Court not only in
reference to the accusation in the FIR but also in reference to the
contents of the case diary and including the charge-sheet (report under
Section 173 Cr.P.C.) and other material gathered by the investigating
agency during investigation.”
35. It is, thus, evident that the exercise to be undertaken by the court
at this stage of granting bail of giving reasons for grant or non-grant of
bail that is markedly different from discussing merits or demerits of the
evidence. The elaborate examination or dissection of the evidence is not
required to be done at this stage. Rather, the Court is merely expected
to record a finding on the basis of broad probabilities regarding the
involvement of the accused in the commission of the stated offence or
otherwise.
36. Further it is the duty of the Court to record its opinion that the
accusation made against the accused concerned is prima facie true or
otherwise and such opinion must be reached by the Court not only in
reference to the accusation in the FIR but also in reference to the
contents of the case diary and including the charge-sheet (report under
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Section 173 CrPC) and other material gathered by the investigating
agency during investigation.
37. This Court, on the basis of the aforesaid position of law and the
factual aspect as has been gathered against the appellant is proceeding
to examine as to whether the accusation against the appellants is prima
facie true as compared to the opinion of accused not guilty by taking
into consideration the material collected in course of investigation.
38. It is evident from the imputation as recorded in para 17.36.5 of
the chargesheet in which role of the present appellant Alamgir Ansari
(A-5) in the instant crime has been disclosed by NIA. It appears that
appellant and Tabarak Ansari (A-9) both are own brothers and was
member of CPI Maoist.
39. He used to provide logistic support alongwith A-9 to the member
of CPI Maoist. On 13.6.2019, appellant has attended meeting conducted
by A-19 and A-17 for terrorist attack on police patrolling party at
Kukruhaat Bazar. Thereafter, appellant went to Kukruhaat Bazar
alongwith co-accused Dasta members of CPI Maoist and was involved
in the killing of police personnel and looting of their arms and
ammunitions.
40. After commission of instant crime the appellant knowingly
assisted Tabarak Ansari (A-9) in repairing of the bike and disposing of
four motorcycles used by co-accused cadres of CPI Maoist for
commission of the instant crime and by doing that the appellant became
a member of proscribed organization and was part of the meeting in
which conspiracy was hatched among co-accused and he assisted co-
accused to assemble with deadly weapon at Kukruhaat to carry out
terrorist attack on police patrolling party which resulted in the killing of
five police personnel and subsequently snatching/ looting of
government issued arms and ammunitions wireless set and setting the
vehicle on fire.
41. It appears from the record that the evidence against appellant
Alamgir Ansari (A-5) is fully substantiated by the statement of
prosecution witnesses. Further, the appellant has been chargesheeted in
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this case under section 121, 121A, 396 of IPC, and Section 16, 18, 20,
38, 39 of UA(P) Act.
42. Thus, from aforesaid evidences prima-facie the involvement of
the present appellant in the alleged commission of crime cannot be
denied. The involvement of the appellant was direct in the alleged
commission of crime which was fully substantiated by the statement of
the independent protected witnesses who were the witness of the
alleged crime.
43. The requirement as stipulated under Section 43 D (5) of the
UA(P) Act, 1967 in the matter of grant of regular bail that while
considering the ground of delay under Section 43 D (5) of the Act, 1967
it is the bounden duty of the Court to apply its mind to examine the
entire materials on record for the purpose of satisfying itself, whether a
prima facie case is made out against the accused or not.
44. Further, since the learned counsel for the appellant has relied
upon the judgment of K.A. Najeeb (supra), so as to interfere with the
impugned order, therefore, this Court deems it fit and proper to going
through the judgment as referred by learned counsel for the appellant.
45. The Appellant’s counsel has relied upon the case of K.A.
Najeeb (supra) to back its contention that the appellant has been in jail
in the instant case since 30th June 2022 which is contrary to law laid
down in the aforesaid case. While this argument may appear
compelling at first glance, it lacks depth and substance.
46. In K.A. Najeeb’s (supra), the Hon’ble Apex Court was confronted
with a circumstance wherein except the respondent-accused, other co-
accused had already undergone trial and were sentenced to
imprisonment of not exceeding eight years therefore the Hon’ble Apex
Court while considering the fact that since the respondent-accused had
already served portion of the maximum imprisonment i.e., more than
five years, hence not interfered in order granting bail.
47. Further, in KA Najeeb’s case the trial of the respondent-accused
was severed from the other co-accused owing to his absconding and he
was traced back in 2015 and was being separately tried thereafter and
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the NIA had filed a long list of witnesses that were left to be examined
with reference to the said accused therefore the hon’ble Apex Court in
the view of unlikelihood of completion of trial in near future not
interfered in the order granting bail. However, the instant case is
different on fact and circumstances as such judgment as referred by the
learned counsel will not be applicable herein.
48. Further it is settled proposition of law that the applicability of the
judgment depends upon the facts and circumstances of each and every
case and there cannot be any universal application of the judgment
rather each judgment is to be decided on the basis of fact of each case.
Reference in this regard may be taken from the judgment as rendered
by the Hon’ble Supreme Court in Dr. Subramanian Swamy vs. State
of Tamil Nadu & Ors. reported in (2014) 5 SCC 75 for ready
reference the relevant paragraph is being quoted herein under :
“47. It is a settled legal proposition that the ratio of any
decision must be understood in the background of the facts of
that case and the case is only an authority for what it actually
decides, and not what logically follows from it. “The court
should not place reliance on decisions without discussing as to
how the factual situation fits in with the fact situation of the
decision on which reliance is placed.”
49. As such this Court is of the view by going through imputation as
has found in course of investigation that the complicity of the appellant
in the alleged crime cannot be denied.
50. It is thus evident that this Court on the aforesaid allegation
cannot come to the conclusion that whatever has come in course of
investigation against the appellant is said to be prima facie untrue rather
this Court is of the view that the allegations are sufficient to come to
the conclusion that the allegation is prima facie true.
51. The factual aspect of the present case is that the appellant is in
custody since 30th June 2022 which is although for last 2 years and 3
months. However, so far as the status of trial is concerned, out of 138
witnesses, 10 witnesses have already been examined.
52. It has been submitted by learned counsel appearing for the NIA
that the trial is to be expedited now since the learned Special Judge is
only looking after the special cases including NIA.
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53. Further, the protected witnesses are to be examined and as has
been submitted on behalf of the learned counsel for the NIA that the
witnesses are examined and efforts will be taken for the examination of
the witnesses on day-to-day basis.
54. Therefore, this Court is of the view that it will not to be just and
proper to interfere with the impugned order. This Court is also of the
view while coming to the aforesaid conclusion that as per the
chargesheet the specific attributability has been casted upon the
petitioner regarding the commission of offence said to attract the
criminal offence under UA(P) Act.
55. The Co-ordinate Division Bench has already taken into
consideration the stipulation so made under Section 43-D (5) of the
NIA Act wherein it has been stipulated that while considering the bail,
if case has been found to be prima facie untrue then only the
consideration the bail is to be given otherwise not. The co-ordinate
Division Bench since have taken into consideration the aforesaid aspect
of the matter and only consideration which has been sought by the
appellant in this appeal is the period of custody and the slow progress in
the trial, upon which the learned counsel for the NIA has submitted that
they are trying to expedite the trial, hence, this Court is of the view that
impugned order need not to be interfered with.
56. This Court taking into consideration the aforesaid facts is of the
view that in the circumstances as referred hereinabove and taking into
consideration the allegation leveled against the appellant, the impugned
order needs no interference by this Court.
57. Accordingly, the instant appeal stands dismissed.
58. Pending I.A, if any stands closed.
(Sujit Narayan Prasad, A.C.J.)
(Arun Kumar Rai, J.)
/AFR
Pramanik
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